Howard v. U.S., 97-15857

• Decision Date: 02 November 1998
• Docket Number: No. 97-15857,97-15857
• Citation: 181 F.3d 1064
• Parties: (9th Cir. 1999) FRANCES HOWARD, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; US SAILING ASSOCIATION, INC.; WAIKIKI YACHT CLUB, a Hawaii corporation; GUY S. FLEMING, Defendants-Appellees. Argued and Submitted:
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1064

181 F.3d 1064 (9th Cir. 1999)

FRANCES HOWARD, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; US SAILING ASSOCIATION, INC.; WAIKIKI YACHT CLUB, a Hawaii corporation; GUY S. FLEMING, Defendants-Appellees.

No. 97-15857

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: November 2, 1998

Submission Deferred: April 27, 1999

Resubmitted: May 21, 1999

Filed: June 22, 1999

Paul Cronin and Patrick McTernan, Cronin, Fried, Sekiya, Kekina & Fairbanks, Honolulu, Hawaii, for the plaintiff-appellant.

Brian M. Judge, United States Department of Justice, San Francisco, California, for defendant-appellee United States of America.

Calvin E. Young, Gail M. Kang, Steven L. Goto, Ayabe, Chong, Nishimoto, Sia and Nakamura, Honolulu, Hawaii, for defendants-appellees U.S. Sailing Association, Inc., and Guy S. Fleming.

Appeal from the United States District Court for the District of Hawaii. David A. Ezra, District Judge, Presiding. D.C. No. CV-95-00642-DAE.

Before: Alfred T. Goodwin, Robert R. Beezer, and Thomas G. Nelson, Circuit Judges.

T.G. NELSON, Circuit Judge:

Frances Howard appeals the district court's judgment, after a bench trial, that the United States Government was immune from negligence liability for personal injuries suffered by Howard while she was using a military recreational facility. We have jurisdiction under 28 U.S.C. 1291. We affirm.

I.

The Government operates, controls and maintains Hickam Air Force Base ("Base") on the Island of Oahu, Hawaii. The Morale, Welfare and Recreation Program ("MWR") at the Base has an Outdoor Recreation Department which is responsible for maintaining and supervising the parks, beaches and boating facilities located on the Base. One of these facilities is the Hickam Harbor Recreational Facility ("Hickam Harbor" or the "Harbor").

Hickam Harbor is available to military personnel, their families and guests for a number of recreational pursuits, including boating, using private or rented boats; windsurfing, using private or rented windsurf boards; picnicking; and swimming. The Harbor contains two floating docks, both owned by the Government - the Rhodes Dock and the Holder Dock. Howard was injured on the Holder Dock on June 4, 1993.

Howard, the wife of an active duty military officer, had just completed the afternoon sailing portion of the first day of a four-day sailing instructor course offered by US Sailing Association, Inc., a private organization that conducts sailing training courses. On that day, the wind and sea conditions were rough, and there was a swell coming into the harbor. Howard began to leave the dock to return to the classroom when she noticed a loose sail covering the end of the gangway¹ to shore. As she stopped to gather the sail, an incoming swell caused the floating dock to abruptly move shoreward and the gangway rolled onto her foot. Her resulting injuries are the subject of this lawsuit.

Howard filed suit against the Government claiming that her injuries were caused by the Government's negligence.² After a bench trial, the district court granted judgment in favor of the Government on Howard's claims, concluding that the Government was immune from negligence liability under the Hawaii Recreational Use Statute ("HRUS"), Haw. Rev. Stat. 520-1 to 520-8 (1993).³ Howard timely appeals.

II.

We review the district court's interpretation of both federal and state law de novo. See Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997) (federal law); Palmer v. United States, 945 F.2d 1134, 1135 (9th Cir. 1991) (state law). The district court's factual findings after a bench trial are reviewed for clear error. See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1427 (9th Cir. 1996).

III.

Under the HRUS, a landowner who either directly or indirectly invites or permits, "without charge," another to use his or her property "for recreational purposes" is immune from negligence liability. See Haw. Rev. Stat. 520-4. Howard argues that the HRUS does not apply to her case because (a) the Government imposed a "charge" for use of the facility; (b) the dock on which she was hurt was not "open to the public"; (c) she was a "business invitee" and the HRUS does not apply to "business invitees"; and (d) she was not engaged in a "recreational activity" when she was injured. We will address each of these arguments in turn.

A. "Without Charge"

The first prerequisite to applicability of the HRUS is that the landowner must not "charge" those entering onto his or her land for recreational use. See Haw. Rev. Stat. 520-5(2). The HRUS defines "charge" as "the admission price or fee asked in return for invitation or permission to enter or go upon the land." See Haw. Rev. Stat. 520-2(4).

It is undisputed that the Government did not charge Howard or US Sailing a fee to enter upon or use the Harbor. It is also undisputed that the $ 175 fee that Howard paid to take the four-day sailing course was charged by, and paid exclusively to, US Sailing.⁴ The Government did not receive any portion of this fee. Based on these undisputed facts, we hold that Howard was not "charged" an "admission price or fee . . . in return for . . . permission to enter or go upon the [Government's] land." Haw. Rev. Stat. 520-2, 520-4, 520-5(2).

Our holding is consistent with those cases that have interpreted the HRUS. For example, in Viess v. Sea Enter., 634 F. Supp. 226, 226 (D. Haw. 1986), the plaintiff was injured while boogie-boarding off Wailea Beach. The plaintiff and his companions had stopped at a hotel for lunch and decided to go swimming before lunch. Id. at 227. They rented a boogie board from a concessionaire on the beach and took turns using the board while swimming. Id. The plaintiff went into the water with the board and "while facing the shore, was struck from behind by a large wave which lifted him up and threw him on his head. The impact fractured his neck and rendered him quadriplegic." Id.

The plaintiff sued, among others, Wailea Development ("Wailea"), the owner of the shoreline property above the mean high-tide mark where the accident occurred. Id. The district court granted Wailea's motion for summary judgment on the basis of immunity under the HRUS. See id. at 229-32.

In response to the plaintiff's argument that "Wailea has received economic benefit from allowing people to use the beach fronting its land,"⁵ the court stated:

[The "charge"] exception is much narrower than the general provision found in other recreational use statutes, which states that an owner may not escape liability where he receives consideration as a result of entry to his property. Such phrasing might permit the finding of liability where the defendant obtains some less obvious benefit from plaintiff's use of his land.

The Hawaii statute, in contrast, speaks only to the explicit quid pro quo arrangement whereby a landowner conditions admission to the land upon payment of a fee. In the instant case . . . from the time plaintiffs arrived at the hotel grounds to the time of the accident, the only fee solicited was from defendant [concessionaire] for the rental of the boogie board. That fee was in no way a prerequisite by Wailea for use of the public beach. Plaintiffs admit that defendant Wailea made no direct charge upon plaintiffs in return for access to the beach. The court, therefore, finds that the "charge" exception to [HRUS] immunity does not apply to defendant Wailea.

Id. at 229.

In Budde v. United States, 797 F. Supp. 731, 733 (N.D. Iowa 1991), the plaintiff was injured while sunbathing and swimming at the officer's club swimming pool at the Naval Air Station, Barbers Point, Hawaii. The plaintiff sued the Government to recover for the injuries she suffered. The district court granted summary judgment in favor of the Government, finding the Government immune from liability under the HRUS. Id. at 738.

The plaintiff argued that the Government was not immune under the HRUS because it had received a charge or fee. First, the plaintiff argued that the $ 6 per person per night charge to stay at the Bachelor Officers' Quarters was a "charge" under the HRUS. Id. at 736. The court rejected this argument, stating:

This $ 6 fee was not a direct quid pro quo for the use of the swimming pool. In fact, [the plaintiff] was allowed the use of the pool because of her status as the dependent of an officer and not because she was paying to stay in her husband's quarters. She was eligible to use the pool regardless of where she was temporarily residing.

Id.

The district court similarly rejected plaintiff's second argument, that the "sales of food and drink at the Officer's Club bar and restaurant constitutes an indirect charge for the use of the swimming pool." Id. at 737.

In the present case, as in both Viess and Budde, the Government did not "charge" Howard for the use of its property. The "charge" exception to HRUS immunity does not, therefore, apply. See Budde, 797 F. Supp. at 736-37; Viess, 634 F. Supp. at 229; see also Covington v. United States, 916 F. Supp. 1511, 1521 n.2 (D. Haw. 1996), aff'd, 119 F.3d 5 (9th Cir. 1997) ("Although the Warrens paid to use the picnic area behind the beach, this fee does not trigger the charge exception because it was not a prerequisite to Joshua's entry onto the beach.").

Howard argues, however, that the Government imposed a "charge" within the meaning of the HRUS because she had to pay US Sailing $ 175 to take the course, and the Government "received a direct financial benefit" because US Sailing allowed two Government employees to take the course at a 50% discount. In so arguing, Howard misses the distinction between the two different types of recreational use statutes that have been passed in the various states: (1) "charge" or "fee" statutes and (2) "consideration" statutes.

1. "Charge" or "Fee" Statutes

Most states that have passed recreational use statutes have provided that the grant of immunity will not apply if the permission to...